by Dick Hall-Sizemore

The refusal of the Youngkin administration to follow the law and Virginia Supreme Court decisions will cost the taxpayers $1.6 million.

As reported by the Washington Post, the state has agreed in a court settlement to pay, in addition to $420,000 in attorneys’ fees, $1.2 million to former inmates who were held in prison beyond their legal release date. Involved in the settlement were 53 former inmates, 21 of whom were held for at least six months beyond their proper release date and at least seven who remained incarcerated for more than a year longer than they were supposed to be held.

The settlement arises from a major change in law enacted by the 2020 General Assembly and the efforts of Attorney General Jason Miyares to impose the administration’s interpretation of the law on its implementation.

I have set out a detailed description of this dispute here. Therefore, I will provide only a brief summary. In 2020, the General Assembly greatly expanded the number of sentence credits an inmate could earn toward reducing his time behind bars. The legislation did exclude inmates convicted of specific violent acts, set out by statute in the legislation, from benefiting from the enhanced sentence credits.

An obvious exemption would be anyone convicted of murder, Sec. 18.2-32. However, whether by design or oversight, the legislature did not include some inchoate offenses such as conspiracy to commit murder or attempted murder, in the list of exempted offenses. Nevertheless, the Department of Corrections declined to release a number of offenders who had been convicted of conspiracy, or attempts, to commit murder and other violent crimes. It based its decision on an official opinion of Miyares that, despite not including those specific Code sections in the list of offenses exempt from qualifying for the enhanced sentences credits, the General Assembly must have intended to exempt those offenses because it would be “irrational” not to do so.

The Virginia Supreme Court disagreed. In its 2023 opinion in Prease v. Clarke, the court reiterated “we presume that the legislature says what it means and means what it says.” Prease was convicted of an offense that was not included in the list of offenses exempt from the enhanced sentence credits; therefore he was entitled, under the law, to those credits and, as a result, must be released.

In accordance with the court order, Prease was released. Nevertheless, the Department of Corrections kept other inmates convicted of similar offenses confined. Less than a year later, it was back before the state Supreme Court in Garcia Vasquez v. Dotson. Jose Isais Garcia Vasquez had been convicted of conspiracy to commit first-degree murder, Sec. 18.2-22 of the Code of Virginia. Because that section is not specifically exempted from eligibility for enhanced sentence credits, Garcia Vasquez contended that he should have been awarded those credits retroactively as the law required and been already released from prison.

The Virginia Supreme Court agreed.

The Attorney General tried to argue that conspiracy to commit murder was a “type” of murder for which the General Assembly had not intended to be eligible for enhanced sentence credits. The court replied, “The definition of murder (and, it follows, all types of murder) requires the “fact of a death.[citation omitted]….One cannot murder a victim by merely thinking about murdering him, plotting to murder him, or entering into a conspiratorial agreement with others to murder him.” Therefore, “Because the General Assembly chose not to disqualify conspiracy to commit murder from Code § 53.1-202.3’s calculation of enhanced earned-sentence credits, Vasquez is entitled to these credits and thus to early release from prison.”

In both of these decisions, the court included this cautionary statement, “We offer no commentary on the policy judgments baked into this statute as a whole or the disputed provision in particular. It is not our place to do so.”

In June 2024, a class action suit, seeking compensation for those inmates who had been held beyond their release dates despite the provisions of the law and the state Supreme Court decisions, was filed in federal court. In December, a settlement was reached. The state will pay each former inmate $118 for each day he or she was confined beyond the release date calculated based on the enhanced sentence credit provisions.